Ord v. Ord

Fitzgerald, J. This is an action of ejectment. Defendants had judgment, and plaintiffs appeal therefrom and from the order denying their motion for a new trial.

It appears that in April, 1873, William Marcellus Ord, the common grantor of plaintiffs, and the defendant, Anna E. Ord, conveyed by deed of gift to plaintiffs, who are the minor children of his brother, John S. Ord, certain property in Santa Cruz County commonly known as the “ Ord rancho,” and which contained about one hundred and sixty acres, including the property in controversy. By the same deed he granted and confirmed to his sister, Mrs. Holladay, five acres of the above tract, but they are not involved in this action. This deed was delivered to Mrs. Holladay by her husband, S. W. Holladay, Esq., to whom it had been previously mailed, by the grantor from Boston, Massachusetts, on the twenty-first day of April, 1873, but it was not recorded until September 2, 1878.

On April 6, 1877, William Marcellus Ord, theretofore a bachelor, intermarried with the defendant, Anna E. Ord.

On Juné 10, 1878, Mrs. Holladay informed Mrs. Ord of the deed executed by her husband to the minor children of his brother John.

On June 17, 1878, William Marcellus Ord executed to his wife, the said Anna E. Ord, in consideration of love and affection and one dollar, a deed of the demanded premises, and on the same day it was duly recorded at her request.

At the time of the commencement of this action, March 16, 1880, Anna E. Ord was in possession of the property under the deed from her husband, who, it appears, died April 26, 1882, nearly seven years before this cause came on for trial.

Upon these facts it became a material question on the trial as to whether the grantor by the delivery of the deed to Mrs. Holladay intended that upon such delivery it should have the effect of passing the title absolutely to the plaintiffs, or whether it was merely a conditional delivery with the right reserved in the grantor to control or recall it.

Upon the trial Anna E. Ord was called as a witness for [525]defendants and upon this point testified “ that she was present at the Pacific Ocean House at the time testified to by Mrs. Holladay, when the latter told her that William M. Ord did not own the land; that she did not ask Mrs. Holladay any questions upon receiving such information from her, because she thought it did not concern her; that, on the same evening or the next day, she told her husband, William M, Ord, that his sister had said that he did not own the land.